Gonzales v. Robert J. Hiller Const. Co.

• Decision Date: 07 April 1960
• Citation: 179 Cal.App.2d 522,3 Cal.Rptr. 832
• Parties: Annie GONZALES, Leonard Gonzales, Robert Lee Gonzales, Richard Gonzales and Anthony Gonzales, infants, by their Guardlan ad litem, annie Gonzales, Plaintiffs and Respondents, v. ROBERT J. HILLER CONSTRUCTION COMPANY, a corporation, et al., Defendants, P. J. Walker Company and 6505 Wilshire Bldg. Corporation, a corporation, Appellant. Civ. 23996.
• Court: California Court of Appeals Court of Appeals

Page 832

3 Cal.Rptr. 832

179 Cal.App.2d 522

Annie GONZALES, Leonard Gonzales, Robert Lee Gonzales, Richard Gonzales and Anthony Gonzales, infants, by their Guardlan ad litem, annie Gonzales, Plaintiffs and Respondents, v. ROBERT J. HILLER CONSTRUCTION COMPANY, a corporation, et al., Defendants P. J. Walker Company and 6505 Wilshire Bldg. Corporation, a corporation, Appellant.

Civ. 23996.

District Court of Appeal, Second District, Division 3, California.

April 7, 1960.

Rehearing Denied May 6, 1960.

Hearing Denied June 2, 1960.

Stevens Fargo, E. M. Mannon, and Belcher, Henzie & Fargo, Los Angeles, for appellants.

Hirson & Horn, Eugene McClosky, Theodore A. Horn, and Herbert L. Hirson, Los Angeles, for respondents.

VALLEE, Justice.

Appeal by defendants 6505 Wilshire Bldg. Corporation and P. J. Walker Company from a judgment for plaintiffs in an action for wrongful death. The cause was tried by the court sitting without a jury.

Defendant 6505 Wilshire Bldg. Corporation was the owner of property on Wilshire Boulevard in Los Angeles. Defendant P. J. Walker Company was the general contractor in the construction of a 12-story office building on the property pursuant to a contract between it and the owner. Robert J. Hiller Construction Company was a subcontractor engaged in installing concrete floors. Anthony C. Meehleis was a subcontractor engaged in installing reinforcing steel. The deceased, Severo Gonzales, was an employee of Meehleis. It was stipulated at the pretrial hearing that the general contractor and each of the subcontractors were independent contractors. The court found that no defendant was the agent of any other defendant.

At the time in question the building was a framework of steel beams. Commencing at the ground floor to and including the sixth floor, concrete floors had been laid. The concrete floors were being laid in this manner: The steel I-beams which formed the framework of the building were enclosed in wooden forms, the sides of which had cleats to support 2- by 6-inch or 2- by 8-inch joists which stood edgeways on the cleats. Metal pans 12 inches wide, 5 feet long, with a 2-inch metal flange on each side, and weighing about 25 pounds, were placed flat on top of the joists. They were laid parallel to the edge of the building. Before the concrete was poured the pans were oiled to make them slippery so they would come down easily. When laid snugly, the pans made a form into which concrete was poured.

The pans were stripped or removed a few days after the concrete had been poured. A movable wooden scaffold was used. It was about 6 feet high and 6 feet wide; its floor was about 6 feet below the ceiling. It did not have a solid floor, but was 'about 50% covered.' It had no sideboards. In order to strip the pans, the joists were knocked on their sides and every other one was removed. This left a horizontal space between the flattened joists of about 20 inches and a vertical space of about 4 inches between the top of the joists to the bottom of the pans. The pans were then unsupported except by adhesion to the hardened concrete. A crowbar was used to loosen the pans and allow them to fall to the joists. It was not unusual for 3 or 4 pans to drop to the joists at one time. Ordinarily they dropped only the 4-inch distance to the joists, but several times a day a pan would go through the aperture between the joists and fall about 5 feet to the scaffold on which Hiller's employees worked. One or two a day would go through the boards of the scaffold and fall about 12 feet to the concrete floor on which the scaffold rested.

On April 23, 1956, the day of the accident, the deceased was working on the second floor level at an open bay near the outer edge of the building. He was replacing steel reinforcing rods in a wooden form for a window sill. The form was about waist-high. Outside the open bay was a scaffold which was part of the form for the exterior walls. There were four reinforced concrete slabs between the deceased and the sixth floor level. When stripping pans near the edges of the building, the scaffold on which the men worked was installed about 12 or 13 inches from the edge. Two employees of Hiller were on the scaffold stripping pans from the ceiling of the sixth floor. They were working at the middle bay on the west side of the building 'right up' to the I-beam which formed the outside edge of the building. The scaffold 'fit just about a bay.' There was nothing in the bay to prevent objects from falling over the side of the building, except a 3/4 or 1-inch rope. As they were stripping, 3 pans fell at one time. One of them, located about 24 inches from the west edge of the building, fell, 'hit the scaffold and tumbled over' out of the bay, down the outside of the building, and apparently struck the scaffold outside the open bay, caromed into the second floor between the ceiling and the floor striking Gonzales, and causing injuries from which he died.

The owner and the general contractor each contends the evidence is insufficient to sustain the finding that it was negligent.

The Case Against the Owner

In McDonald v. Shell Oil Co., 44 Cal.2d 785, at page 788, 285 P.2d 902, at page 904, the court stated:

'The general supervisory right to control the work so as to insure its satisfactory completion in accordance with the terms of the contract does not make the hirer of the independent contractor liable for the latter's negligent acts in performing the details of the work. Green v. Soule, 145 Cal. 96, 99-100, 78 P. 337. An owner is not liable for injuries resulting from defective appliances unless he has supplied them or has the privilege of selecting them or the materials out of which they are made, Hard v. Hollywood Turf Club, 112 Cal.App.2d 263, 274-275, 246 P.2d 716, or unless he exercises active control over the men employed or the operations of the equipment used by the independent contractor. Willis v. San Bernardino Lbr. & Box Co., 82 Cal.App. 751, 756, 256 P. 224.'

Also see Williams v. Fairhaven Cemetery Ass'n, 52 Cal.2d 135, 139-140, 338 P.2d 392; Sabin v. Union Oil Co., 150 Cal.App.2d 606, 608, 310 P.2d 685.

The record is devoid of any evidence that the owner assumed or exercised control over the building in the process of construction; it did not assume or exercise any control of Hiller's employees in the stripping of the pans. There was no evidence that the owner was negligent in selecting the general contractor. Plaintiffs rely on the testimony of William E. McDonough, a vice president of the owner. Mr. McDonough testified: he was around the building daily to watch the progress of the work; he is familiar with construction operations 'just as any layman is who has seen a number of them built, and who has invested in them'; he was familiar with the stripping operation only to the extent he knew it was going on; he observed that all of the things to be done under the contract seemed to be done during the course of the job; he visited there every day and he saw many safety precautions being taken; he was a 'victim' of a number of them; he was not permitted to go into certain areas; prior to April 23, 1956, he did not recall anything covering any of the openings on the sides of the building to prevent objects from falling below, other than scaffolding which was there from them to time. There was no evidence that the owner at any time assumed control, interfered with, or directed the general contractor or any of the subcontractors in their independent operations, and particularly in the work being performed by Hiller and its employees.

The evidence does not present a factual situation in which an owner may be liable for injuries to an employee of an independent contractor. As said in McDonald v. Shell Oil Co., supra, 44 Cal.2d 785, 790, 285 P.2d 902, 904, '* * * the owner may retain a broad general power of supervision and control as to the results of the work so as to insure satisfactory performance of the independent contract--including the right to inspect [citation], the right to stop the work [citation], the right to make suggestions or recommendations as to details of the work [citation], the right to prescribe alterations or deviations in the work [citation]--without changing the relationship from that of owner and independent contractor or the duties arising from that relationship. * * * Various factual situations in which an owner may be liable for injuries to the employee of the independent contractor should be distinguished: (1) This is not a case where the employee of the independent contractor was injured by some condition of the owner's premises over which the owner remained in control, and where the owner's duties to the employee were those owing to a business invitee [citations]; (2) Nor is this a case where the owner furnished the equipment or was obligated by contract to do so, and the equipment proved to be defective, causing injury to the employee of the independent contractor [citations]; (3) Finally, this is not a case where the owner actively interfered with or arbitrarily assumed to direct the employees of the independent contractor as to the manner and method of performing the work. [Citations.] Likewise distinguishable is Snow v. Marian Realty Co., 212 Cal. 622, 299 P. 720, where the owner's liability for damages stemmed not from responsibility for the negligent acts of the independent contractors but from the allowance of work on its property constituting a nuisance.' The facts in the present case do not bring it within any of these exceptions to the general rule.

Plaintiff cites Labor Code, § 6304, which reads:

"Employer' shall have the same meaning as in section 3300 and shall also include every person having direction, management, control, or custody of any employment, place of employment, or any employee.'

'To make the owner responsible as 'employer' under section 6304 [of the Labor Code], as construed by the cases the dangerous...